Citation Nr: 21065371 Decision Date: 10/26/21 Archive Date: 10/26/21 DOCKET NO. 18-07 265 DATE: October 26, 2021 ORDER Entitlement to death pension is denied. Entitlement to service connection for cause of death is denied. FINDINGS OF FACT 1. The Veteran served in the National Guard with a verified period of active duty training from September 28, 1974 to October 25, 1974 and February 1, 1976 to August 6, 1976. 2. The Veteran died in September 2009. The immediate cause of death was probable myocardial infarction and congestive heart failure. 3. At the time of death, the Veteran did not have any service-connected conditions. 4. Myocardial infarction and congestive heart failure were not demonstrated in service or for many years thereafter. There is no competent evidence of record demonstrating a relationship between the cause of the Veteran's death and his active military service. CONCLUSIONS OF LAW 1. The criteria for basic eligibility for nonservice-connected death pension benefits are not met. 38 U.S.C. §§ 101, 107, 1521; 38 C.F.R. §§ 3.3, 3.6. 2. The criteria for service connection for the cause of the Veteran's death are not met. 38 U.S.C. §§ 1131, 1310; 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.312. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1974 to October 1974 and February 1, 1976 to August 6, 1976. In June 2019, the Board remanded the case for further development, namely, to seek verification of the Veteran's service in the National Guard. There has been substantial compliance with these remand directives. Stegall v. West, 11 Vet. App. 268, 271 (1998). 1. Entitlement to death pension The question before the Board is whether the Veteran had established threshold eligibility for VA pension benefits. Pension is payable to a veteran of a period of war who is permanently and totally disabled from nonservice-connected disability not the result of his or her own willful misconduct. 38 U.S.C. § 1521(a); 38 C.F.R. §§ 3.3, 3.314(b). A veteran meets the service requirements of that section if he served in active military, naval, or air service: (1) for 90 days or more during a period of war; (2) during a period of war and was discharged or released from service for a service-connected disability; (3) for a period of 90 consecutive days or more and such period began or ended during a period of war; or (4) for an aggregate of 90 days or more in two or more separate periods of service during more than one period of war. 38 U.S.C. § 1521(j); 38 C.F.R. § 3.3(a)(3). "Active military, naval, or air service" only includes any period of active duty for training (ACDUTRA) during which the individual concerned was disabled or died from a disease or injury incurred in or aggravated in line of duty, or any period of inactive duty for training (INACDUTRA) during which the individual concerned was disabled or died from injury incurred in or aggravated in line of duty. 38 U.S.C. §§ 101 (21), (24); 38 C.F.R. § 3.6 (a), (d). Active duty for training (ACDUTRA) includes full-time duty performed by Reservists for training purposes or by members of the National Guard of any state. 3 8 U.S.C. § 101 (22); 38 C.F.R. § 3.6 (c). Annual training is an example of ACDUTRA, while weekend drills are INACDUTRA. The term "period of war" means the Mexican border period, World War I, World War II, the Korean conflict, the Vietnam era, the Persian Gulf War, and the period beginning on the date of any future declaration of war by the Congress. 38 U.S.C. § 1501 (4); see 38 C.F.R. § 3.2, (setting forth the beginning and ending dates of each war period beginning with the Indian wars). The term period of war in reference to pension entitlement under 38 U.S.C. §§ 1521, 1541, and 1542 means all of the war periods listed in 38 C.F.R. § 3.2 except the Indian Wars and the Spanish-American War. 38 C.F.R. §§ 3.2, 3.3(a)(3) and (b)(4)(i). As a threshold requirement for survivor pension benefits, the veteran must have had the requisite period of wartime service. In this case, the Veteran had active duty service from September 28, 1974 to October 25, 1974 and February 1, 1976 to August 6, 1976. While the Veteran was on active duty from September 28, 1974 to October 25, 1974 during a period of war, the Vietnam era, he only served 28 days. To be eligible for pension benefits, the Veteran must serve for 90 days or more during a period of war. The Veteran did have over 90 days of service from February 1, 1976 to August 6, 1976; however, this did not occur during a period of war, nor did it begin or end during a period of war; thus, is it not qualifying service for pension purposes. Finally, while the Veteran's two separate periods of service, resulted in an aggregate of more than 90 days, they did not occur during more than one period of war. See 38 C.F.R. § 3.3(a)(3). As such, the service requirements for pension are not met. The Board considered the appellant's allegation that the Veteran qualifies for pension as he served at least one day during a war time period with an accrued total of six years, six months, and 12 days of service. See Correspondence July 2016 and Medical Treatment Record Non-Government Facility February 2018. However, 38 C.F.R. § 3.3(a)(3) requires that a Veteran served in the active military during a period of war for 90 days for basic entitlement to pension. Therefore, any time less than 90 days of active service in a period of war, such as one day, is insufficient to meet the statutory eligibility requirements for pension. The appellant also provided a breakdown of the Veteran's active duty service dates in the United States Army from September 1974 to October 1974 and February 1, 1976 to August 6, 1976, which is discussed above, as well as alleged active duty dates in the National Guard from November 1976 through August 1982. The Board has considered the National Guard dates provided by the appellant; however, the Vietnam era ended on May 7, 1975 and the Persian Gulf War did not begin until August 2, 1990. See 38 C.F.R. § 3.2. As such, the Veteran's National Guard service from November 1976 through August 1982 occurred during peacetime; thus, even if he served on active duty during those dates, eligibility for pension would remain unwarranted as it would not be qualifying wartime service. 38 C.F.R. § 3.3. Accordingly, as the threshold eligibility for VA pension benefits is not met, the claim is denied. 2. Entitlement to service connection for cause of death The Veteran died in September 2009, and his death certificate reports probable myocardial infarction and congestive heart failure as the immediate cause of his death. The Veteran was not service connected for any disabilities at the time of death. After a veteran's death, VA compensates certain beneficiaries, including surviving spouses, when the cause of death is a service-connected disability or the cause of death, while not service-connected, is related to service. 38 C.F.R. § 1310; 38 C.F.R. §§ 3.5 (a), 3.312. In order to establish service connection for the cause of death, the evidence must show that a disability incurred in or aggravated by service was either the principal cause of death or contributed substantially or materially to the veteran's death. For the disability to constitute a contributory cause, it is not sufficient to show that it casually shared in producing death, but rather it must be shown that there was a causal connection. 38 C.F.R. § 3.312. For a service-connected disability to constitute a contributory cause of death, it must be shown to have contributed substantially or materially to the veteran's death; combined to cause death; aided or lent assistance to the production of death; or resulted in debilitating effects and general impairment of health to an extent that would render the veteran materially less capable of resisting the effects of other disease or injury causing death, as opposed to merely sharing in the production of death. 38 C.F.R. § 3.312. Service connection may be awarded for the causes of the Veteran's death upon the following: (1) Competent evidence of the current existence of the disability for which service connection is being claimed; (2) competent evidence of a disease contracted, an injury suffered, or an event witnessed or experienced in active service; and (3) competent evidence of a nexus or connection between the disease, injury, or event in service and the current disability. Shedden v. Principi, 381 F.3d 1163 (2004). While the first element of service connection is met as current diagnoses are established, the preponderance of the evidence is against finding that congestive heart failure or myocardial infarction began during active service, or is otherwise related to an in-service injury, event, or disease. The service treatment records are silent as to any complaints, treatments or diagnoses related to cardiac conditions. The March 1975 examination reported no defects or diagnosis with the heart and the September 1976 separation examination also revealed no heart related conditions, to include high blood pressure. The National Guard records reveal no abnormalities of the heart with the Veteran reporting no pain or pressure in the chest, palpitation or pounding heart, heart trouble or high or low blood pressure in June 1980 and February 1982. The post-service medical records do not reveal a diagnosis of congestive heart failure secondary to cardiomyopathy until March 2004. Thus, the medical evidence establishes that there were no cardiac conditions noted in service with a diagnosis of congestive heart failure secondary to cardiomyopathy not diagnosed until 2004, approximately 28 years after active service. Notably, the appellant provided a statement dated December 29, 2017 stating that it is not her position that the Veteran's death was service connected. She clarified that her contention is that he suffered dismemberment from a car accident that happened en route to service in the National Guard, which rendered him unemployable. See Medical Treatment Record Non-Government Facility February 2018. The Board notes that the requested discharge from the National Guard in August 1982 due to his automobile accident resulting in severance of the right leg, reported that the accident did not occur while on military status and was not in the line of duty. See STR Medical February 2021. Furthermore, there were no claims pending before the VA at the time of death and the appellant's claim to reopen entitlement to accrued benefits was denied in the June 2019 Board decision. VA compensates for cause of death when a service-connected disability or the cause of death, while not service-connected, is related to service. Neither the appellant nor the representative has provided any statements or details alleging any in-service event or diagnosis that could be related to congestive heart failure or myocardial infarction. Significantly, the appellant has stated that she does not contend that her husband's death was service connected. As such, there is no lay or medical evidence that myocardial infarction and/or congestive heart failure began during active service, or was otherwise related to an in-service injury, event, or disease. The Board finds that the VA's duty to provide a VA medical opinion is not triggered in this case. In determining whether VA's duty to assist requires a VA medical examination or medical opinion, four factors are for consideration: (1) whether there is competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) whether there is evidence establishing that an event, injury, or disease occurred in service, or evidence establishing certain diseases manifesting during an applicable presumption period; (3) whether there is an indication that the disability or symptoms may be associated with the veteran's service or with another service-connected disability; and (4) whether there otherwise is sufficient competent medical evidence of record to make a decision on the claim. 38 U.S.C. § 5103A (d) (2012); 38 C.F.R. § 3.159 (c)(4) (2017); see McLendon v. Nicholson, 20 Vet. App. 79 (2006). The evidence of record does not establish that the Veteran's myocardial infarction and/or congestive heart failure began during active service or is related to service. As such, a VA opinion is not necessary. Accordingly, service connection for cause of death is denied. See 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.312. G. A. WASIK Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. A. Prinsen The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.